1989 PLP 536 (PLC)

(b). ................................................ (c) .................................................. (d). ................................................ Provided that, where a collective bargaining agent or a trade union performing the functions of a collective bargaining agent under section 52 exists, the employer shall not enter into a settlement with any other trade union, and any contravention of this provision shall be deemed to be an unfair Labour practice under section 15."

12. When questioned as to what functions the appellants have performed as Collective Bargaining Agent it as submitted that they had separately entered into settlements with State Bank of Pakistan in the year, 1970 and 1972 with respect to their respective class of workmen. It was further submitted that the appellants represented their workmen before the. Wage Commission and also nominated representatives of workers to the Works Councils and also sat on various other Committees. 13. 1t was submitted by Mr.Ali Amjad that aforementioned proviso to clause (d) of subsection (1) of section 39 was incorporated vide Act NoXIs of 1976, whereby the employer was prohibited from entering into the settlement with any other trade union except with the trade union performing functions of collective bargaining agent under section 52 or with the collective bargaining agent. 1t is submitted that prior to incorporation of this proviso the employer could enter into settlement with any trade union and, therefore, the fat that the appellants entered into any settlement with the employer in 1970 and 1972 would not prove that they were functioning as collective bargaining agent under section

52. It was further submitted that after the registration of the respondent trade unions they were also invited by the Wage Commission and such circular has been produced to show that alongwith the appellants the respondent unions were also invited by the Wage Commission but respondents were restrained from attending Wage Commission clue to Stay Orders issued by the Court.

14. The functions of the 'Collective Bargaining Agent' arc spelt out in subsection (l2) of section 22 of the 1.R.0., 1969, which reads as under:‑ (10) . .................................. (11). .................................. (12) The collective bargaining agent in relation to an establishment or group of establishments shall be entitled to‑‑ (a) undertake collective bargaining with the employer or employers on matters connected with employment, non‑employment, the terms of employment or the conditions of work; other than matters which relate to the enforcement of any right guaranteed or secured to it or any workman by or under any law, other than this Ordinance, or any award or settlement; (b) represent all or any of the workmen in any proceedings; (c) give notice of, and declare a strike in accordance with the provisions of this Ordinance; and (d) nominate representative of workmen on the Board of Trustees of any welfare institutions or Provident Funds, and of the Workers' Participation Fund established under the Companies Profits (Workers' Participation) Act, 1968 (XII of 1968)."

15. Admittedly after the establishing of Wage Commission the functions as described in clauses (a) and (c) are no more performed by the Collective Bargaining Agent. It was submitted by Mr.M.M.Kaz(m that collective bargaining agents are restrained from performing certain functions described in clause (a) but certain functions in clause (a) still can be performed by the collective bargaining agent. When asked to indicate as to what other functions or matters under clause (a) the appellants have performed or bargained, he was not able to point out any such after or functions. Similarly it was admitted that functions mentioned in clause (d) have also not been performed by the appellants. The only function that is alleged to have been performed by the appellants acting as collective bargaining agents is the nomination of representatives of the workmen on the Works Council under section ‑24 of the Ordinance. Section 24 may also be reproduced as under:‑ "

24. Works Councils.‑‑In every establishment in which fifty or more .workmen are employed or were employed on any day in the preceding 12 months, the employer shall constitute, in the prescribed manner, a Works Council consisting of the representatives of the employer and the workmen so however that the number of the representatives of the workmen is not less than the number of the representatives of the employer in the works council. (2) In the case of an establishment where there are one or more trade unions, the collective bargaining agent shall nominate the representatives of the workmen on such Works Council: Provided that where there is no collective bargaining agent, representatives of workmen on a Works Council shall be chosen in the prescribed manner from amongst the workmen engaged in the establishment for which the works council is constituted."

16. It is submitted that even before the promulgation of the I.R.O., the concept of Trade Unions for separate classes of employees was recognised by the State Bank of Pakistan. The status of the appellants as Trade Unions for respective classes of the employees/workmen that they claim to represent is not disputed is their claim that they were working as 'collective bargaining for their respective classes of employees. Under section 22 of the Ordinance only one trade union can function as the 'collective bargaining agent' for one establishment. The word 'establishment' is defined in section 2(ix) of the Industrial Relations Ordinance, 1969, as under:‑ "(ix) 'Establishment' means any office, firm, industrial unit, undertaking, shop or premises in which workmen are employed for the purpose of carrying on any industry (and except in section 22‑EE, includes a collective bargaining unit, if any, constituted under that section in any establishment or group of establishment);"

17. Class III or Class IV employees working in the same office, firm, industrial unit, undertaking, shop or premises cannot be considered as separate establishment but would constitute one establishment only. However, to provide A for appointment of 'C.B.A.' for separate classes or separate units the concept of 'collective bargaining unit was incorporated in the Ordinance through Act NoXVI of 1975. Under this Act the words which are (‑‑) bracketted in the definition of 'establishment' were added.

18. Subsection (va) to section 2 of the Ordinance was also added by Act NoXVI of 1975. It defines word 'collective bargaining unit' which reads as under;‑ (va) 'Collective bargaining unit' means those workers or class of workers of an employer in one or more establishments falling within the same class of industry whose terms and conditions of employment are, or could appropriately be, the subject of collective bargaining together."

19. Section 22‑EE which was also incorporated under the said Act of 1975 empowers the N.I.R.C. to determine one or more collective bargaining units in an establishment or group of establishments in relation to collective bargaining if it was necessary, just and feasible for safeguarding interest of workmen' and also certify one or more collective bargaining agents in such establishment or group. II Unless the N.I.R.C. so determines and certifies under section 22‑EE there can be only one collective bargaining agent in one establishment. As pointed above in Para 4, it was only in December, 1983, one of the appellants namely Employees Union applied to the N.I.R.C. for determination and certification of the collective bargaining unit and collective bargaining agent for such unit but the same was rejected by the Senior Member of the N.I.R.C. and appeal was also dismissed by the Full Bench. In 1984 again the Non‑clerical Union moved the N.I.R.C. for declaration of 'Collective bargaining unit' category‑wise of all the offices of the State Bank of Pakistan at Karachi separately for Class III and Class IV employees which was allowed by the learned Member N.1.R.C on 30‑5‑1985 but the operation of the order was stayed by Full Bench of N.I.R.C. Appeal was dismissed by Full Bench of N.I.R.C. but the operation of the impugned order was again stayed in Writ Petition No.132 of 1986. The petition was, however, dismissed as infructuous because the order of N.I.R.C. determining the 'C.B.U.' was only for two years which period had expired. Presently there is no `Collective Bargaining Unit` declared by the N.I.R.C. or any `Collective Bargaining Agent' for such units certified by the N.I.R.C. under section 22‑EE.

20. Admittedly an application under section 22‑EE is now pending before the N.I.R.C. on which no decision has been taken. The position that emerges is that `C.B.U.' or certified `C.B.U.' for such unit was not working at any stage and the present position is that there is only one establishment of which there can be only one `collective bargaining agent'.

21. The contention of the appellants that they have been nominating representatives of the workmen on Works Council under section 2.1 in their capacity as collective bargaining agent is also not tenable. As pointed above there can be no two bargaining agents. Both of appellants could not have nominated the representatives of the workmen on the Works Council in the capacity as collective bargaining agents. Admittedly there is only one Works Council constituted by the State Bank of Pakistan. Under section 24 every establishment would have separate Works Council. The fact that there is only one Works Council also enforces the claim of the respondent that there is only one establishment. Under the definition of word `establishment' as amended by Act XVI of 1975 if there were `Collective Bargaining Units' which were represented by the two appellants separately there would have been two Works Councils as each collective bargaining unit would be considered as separate establishment and, under section 24 each establishment has separate Works Council.

22. In view of the above circumstances and legal position the appellants could not be considered to be performing the functions of collective bargaining agent even under section 52 of the Ordinance. Mr.Masood Mirza has admitted that Works Council is constituted every two years. It was constituted in 1981 and the representatives of the workmen were nominated by the two appellants. The term of this Works Council expired in 1983. No Works Council was constituted because of dispute over certification of `Collective Bargaining Agent' till May, 1984 when it was re‑constituted under the Stay Order issued by the Court. He also stated that no Works Council is in existence since January, 1988. Be that as it may as already pointed above both the appellants could not nominate the representatives on the Works Council as Collective Bargaining Agent,, because there can be only one Collective Bargaining Agent and none of the Unions was certified either by the Registrar or by the N.1.R.C to be 'Collective Bargaining Agent' for nominating the Members on the Works Council.

23. The main function that the Collective Bargaining Agent can perform is working on the Committees which may be constituted and nominated of e representatives of workers on the Works Council. The Industrial Relations (Sind) Rules provide for contingency in such cases when there is no collective bargaining agent. Under section 23‑C of the Ordinance, joint management board is to be constituted in every factory and procedure for constitution is provided under Rule 48‑B of the Industrial Relations (Sind) Rules, 1973. Under sub‑rule (3) of this Rule the representatives of Workers are to be nominated by `C.B.A.' However, Sub‑rule (4) provides that where there is no 'Collective Bargaining Agent' the Management shall, within thirty days of the nomination of its representatives, hold elections for electing the representatives of the workers and bear all expenses thereon for holding such elections. Thereafter, such elections shall be held at an interval of every two years. Similarly Rule 52 provides," where in an establishment there is no collective bargaining agent the employer shall hold election to choose representatives of workmen for the Works Council and within seven days of such election the employer shall constitute the Works Council by a notice as laid down in Rule 51". There is also no bar on the employer entering in agreement with any trade union which may not be collective bargaining agent except in cases covered under proviso to section 39(1)(d) of the Ordinance, which has already been reproduced above. Thus the law contemplates situations where there is no collective bargaining agent and provides for relief to workers even in such cases.

24. The result of aforesaid discussion is that the appellants have not been able to establish their rights to be working as collective bargaining agent under section 52 of the Ordinance and as such their appeals are liable to fail. The appeals are, accordingly, dismissed.

25. However, it may be pointed out that constitution of Works Council is mandatory and, therefore, the employer yiz State Bank is directed to constitute the Works Council within thirty days of this order. The representatives of workers on such Council shall be elected in accordance with the provision of Rule

52. The parties ate at liberty to move the competent Authorities for the certification of collective bargaining agents or for determination of collective bargaining unit which relevant authorities would decide in accordance with law. M.N.H./1413/Lb.S Appeals dismissed.